Imagine this Scenario: You have been charged with a domestic assault in Virginia, and the complainant in your case decides he or she wants the charge dropped. Are you in the clear? Not so Fast!

Many charged with domestic assault have the mistaken belief that because the complainant wants a charge to be dropped, it will in fact be dropped. However, you may have a rude awakening if you rely on this belief when going to court. In Virginia, when you are charged with a domestic assault, the case is prosecuted by the Commonwealth Attorney. While the complainant is represented by the Commonwealth Attorney, the Commonwealth Attorney also represents the community as a whole. Often times the Commonwealth Attorney will force prosecution despite the complainants desire to drop the case.

To understand why, you must understand the unique nature of domestic violence. There is no question that domestic violence is a very serious matter. Domestic assault charges clog the Virginia court system. Commonwealth Attorney’s deal with these charges daily. Their concern is that an accused has forced the complainant not to seek a prosecution through threatened or actual violence. Therefore, in considering whether to prosecute when a complainant seeks the charges to be dropped, the Commonwealth Attorney’s decision is in large part determined upon whether they can get a conviction.

In some circumstances, the Commonwealth Attorney can compel the complainant to testify by threat of contempt of court. Contempt of court means that a person has violated a court order, which would in this case, would be failing to answer questions posed to them during trial. However, this is sometimes difficult from the Commonwealth Attorney’s perspective, and, in many circumstances, a complainant has the ability plead the Fifth Amendment.

In cases in which the Commonwealth Attorney cannot force or perhaps may not want to force the complainant to testify, the Commonwealth Attorney may seek a “victimless prosecution." Victimless prosecutions occur when the Commonwealth Attorney prosecutes a domestic assault without testimony from the complainant. Such prosecutions can be sought mainly in two ways. The easiest way is when the Commonwealth Attorney has an independent witness that actually saw an accused commit the assault. Unless there is a legitimate issue with that witness’s credibility, the Commonwealth Attorney will likely have a strong case.

Another instance in which a victimless prosecution can be sought is if the accused confessed to the assault to law enforcement or another witness. While the accused cannot be convicted solely on his or her confession, the CA need only prove “slight corroborating" evidence of the assault. Such evidence may be visible injury to the complaint, damaged property at the scene of the incident that would indicate a struggle, ripped clothing, etc.

Given this, you must be keenly aware that even if your complainant does not seek a prosecution, you cannot simply sit back and assume your case will be dismissed.

Best of luck,

James S. Abrenio